Riley v. Wilson

• Decision Date: 11 December 1893
• Citation: 24 S.W. 394
• Parties: RILEY v. WILSON et al.
• Court: Texas Supreme Court

24 S.W. 394

RILEY v. WILSON et al.

Supreme Court of Texas.

December 11, 1893.

Certified questions from court of civil appeals, fifth supreme judicial district.

Action by Lucinda E. Wilson and others against A. W. Riley. Certified questions from court of civil appeals.

Yoakum & Looney, for appellants. J. G. Matthews, for appellee.

STAYTON, C. J.

The following issues are certified for decision: "(1) Can a married woman make a gift of her separate real estate to the husband, by joining with her husband in a conveyance of the land to a third party, complying fully with the law as to privy examination and acknowledgment, and thus causing such third party to reconvey the land to the husband? (2) If the first question be answered in the affirmative, would the fact that the property is the homestead affect the question? If so, how? (3) In making such conveyance through a third person, is it necessary that the deed from the husband and wife should be delivered to the third party, or, would his reconveyance to the husband be a sufficient acceptance of the trust sought to be imposed?"

These questions arise in a suit by the heirs of the wife against the husband. It has long been settled in this state that a husband may convey his separate or community property to his wife directly. Fitts v. Fitts, 14 Tex. 444; Reynolds v. Lansford, 16 Tex. 292; Story v. Marshall, 24 Tex. 306; Smith v. Boquet, 27 Tex. 507. Capacity of husband and wife to take and hold property in separate right being equal in this state, if the wife was not under disability to convey her lands except by a deed in which her husband joins, her power to convey to him without the intervention of a third person would be as clear as is his power to convey directly to her; but, as she can convey only by a deed in which he joins, they cannot make a deed directly to him, for no person can contract with himself. So far as now remembered, the first question certified has not been directly decided in this state; but there is an unbroken line of decisions in other states, having statutes similar to those in force here, holding that the wife, joined by her husband may convey to a third person, even though the purpose of this is that such person shall convey to the husband, and that, through a conveyance from that person to the husband, title to the property will vest in him. Scarborough v. Watkins, 9 B. Mon. 546; Todd's Heirs v. Wickliffe, 18 B. Mon. 866; Jackson v. Stevens, 16 Johns. 109; Dempsey v. Tylee, 3 Duer, 95; Shepperson v. Shepperson, 2 Grat. 501; McCartee v. Society, 9 Cow. 463; Merlam v. Harsen, 2 Barb. Ch. 265; Id., 4 Edw. Ch. 81; Gebb v. Rose, 40 Md. 392; Grove v. Jeager, 60 Ill. 249; Thatcher v. Omans, 3 Pick. 521; Durant v. Ritchie, 4 Mason, 45; Garvin v. Ingram, 10 Rich. Eq. 130. The elementary authorities are to the same effect. 1 Bish. Mar. Wom. 604, 712, 713; Kelly, Cont. Mar. Wom. 131; 1 Cord. Mar. Wom. 428; Har. Cont. Mar. Wom. 582, 583; Wells, Mar. Wom. § 582. There are two requisites to the validity of a deed made by a married woman, in addition to those which must exist in conveyances by persons not laboring under disability to contract, and these are both intended for her protection: She must acknowledge the instrument to be her act and deed, and state that she willingly signed it and wishes not to retract, after it has been shown and explained to her, privily and apart from her husband, by the officer taking her acknowledgment. This is required to secure to her knowledge of the true character and effect of the instrument, to secure her freedom of action, and to protect her from any influence, coercive in its...